US v. Ira Thorpe
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00407-WO-1 Copies to all parties and the district court/agency. [1000033263].. [16-4577]
Appeal: 16-4577
Doc: 22
Filed: 03/01/2017
Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4577
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
IRA LEE THORPE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00407-WO-1)
Submitted:
February 9, 2017
Decided:
March 1, 2017
Before TRAXLER, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Michael
A.
DeFranco,
Assistant
United
States
Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 16-4577
Doc: 22
Filed: 03/01/2017
Pg: 2 of 6
PER CURIAM:
Ira
Lee
Thorpe
pled
guilty,
pursuant
to
a
written
plea
agreement, to one count of being a felon in possession of a
firearm,
in
violation
of
18
U.S.C.
§§
(2012).
The district court sentenced Thorpe to 24 months and 1
day of imprisonment, and he now appeals.
922(g)(1),
924(a)(2)
Appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning
unreasonable
effective
whether
because
right
of
the
Thorpe’s
district
allocution.”
sentence
court
Thorpe
is
procedurally
denied
has
Thorpe
filed
a
“an
pro
se
supplemental brief contending that his conviction violates both
the Second Amendment as applied to him and due process.
We
affirm.
Counsel
allocution”
Thorpe
argues
was
during
that
violated
allocution
Thorpe’s
when
the
and
then
answers when imposing sentence.
“effective
district
right
court
penalized
to
questioned
Thorpe
for
his
Because Thorpe did not raise
this objection in the district court, we review for plain error.
See
United
2007).
States
v.
Muhammad,
478
F.3d
247,
249
(4th
Cir.
To establish plain error, Thorpe must demonstrate that
(1) the district court committed an error; (2) the error was
plain;
(3) the
error
affected
his
substantial
rights;
and
(4) the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”
2
Puckett v. United
Appeal: 16-4577
Doc: 22
States,
556
Filed: 03/01/2017
U.S.
129,
135
Pg: 3 of 6
(2009)
(internal
quotation
marks
omitted).
“Before imposing sentence, the court must . . . address the
defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.”
Crim. P. 32(i)(4)(A)(ii).
Fed. R.
A court may interrupt a defendant’s
allocution to ask questions so long as there is no indication
that the court is attempting to terminate the allocution and the
defendant
factors.
is
given
ample
opportunity
to
speak
to
mitigating
See United States v. Covington, 681 F.3d 908, 910 (7th
Cir. 2012); cf. United States v. Li, 115 F.3d 125, 133-34 (2d
Cir. 1997) (holding that defendant was denied opportunity for
“meaningful” allocution).
Furthermore, a court may increase a
defendant’s sentence based on comments made during allocution if
the comments are relevant to the 18 U.S.C. § 3553(a) (2012)
analysis.
See United States v. Smith, 424 F.3d 992, 1016-17
(9th Cir. 2005); United States v. Burgos-Andujar, 275 F.3d 23,
30-31 (1st Cir. 2001); Li, 115 F.3d at 134-35.
Although
the
district
court
often
interrupted
Thorpe’s
allocution to question him and referenced Thorpe’s answers in
setting the downward variance sentence, we discern no error.
The
district
responses
court
could
be
properly
viewed
noted
as
that
minimizing
some
his
of
Thorpe’s
acceptance
responsibility and others were of questionable veracity.
3
of
We
Appeal: 16-4577
Doc: 22
conclude
Filed: 03/01/2017
that
credibility
the
of
district
Thorpe’s
Pg: 4 of 6
court
comments
permissibly
during
assessed
allocution
the
and
appropriately considered those statements in fashioning Thorpe’s
sentence under § 3553(a).
Thorpe also argues that his conviction violates the Second
Amendment as applied to him because his felony drug convictions
are over 20 years old and he does not have a history of violent
conduct.
plea.
Thorpe’s contention is likely waived by his guilty
See United States v. Fitzgerald, 820 F.3d 107, 110 (4th
Cir. 2016) (recognizing that “when a defendant pleads guilty, he
waives
all
nonjurisdictional
defects
in
the
proceedings
conducted prior to entry of the plea” (alterations and internal
quotation marks omitted)); United States v. Seay, 620 F.3d 919,
922 n.3 (8th Cir. 2010) (holding as-applied Second Amendment
challenge
to
§
922(g)
was
not
jurisdictional
claim);
United
States v. Fox, 573 F.3d 1050, 1052 n.1 (10th Cir. 2009) (same).
Even
assuming
Thorpe’s
claim
survives
conclude that the claim lacks merit.
the
possibility
of
a
successful
his
guilty
plea,
we
Although we have left open
as-applied
challenge
to
§ 922(g)(1), United States v. Moore, 666 F.3d 313, 320 (4th Cir.
2012),
given
Thorpe’s
criminal
history,
he
“law-abiding responsible citizen requirement.”
cannot
meet
the
United States v.
Pruess, 703 F.3d 242, 246 (4th Cir. 2012) (internal quotation
marks omitted).
4
Appeal: 16-4577
Doc: 22
Filed: 03/01/2017
Pg: 5 of 6
Lastly, Thorpe avers that his conviction violates his “due
process reliance interests.”
When Thorpe pled guilty in North
Carolina state court to the felony drug offenses that served as
the predicates for the instant conviction, state law prohibited
Thorpe from possessing firearms for five years after his release
from
state
custody.
Before
threshold,
the
North
restoration
of
rights
(1995),
permanently
to
Thorpe
Carolina
General
statute,
ban
reached
N.C.
Assembly
Gen.
convicted
the
amended
Stat.
felons
five-year
§
from
the
14-415.1
possessing
certain firearms.
Like Thorpe’s Second Amendment claim, his due process claim
was likely waived when he pled guilty.
at 110.
See Fitzgerald, 820 F.3d
Notwithstanding, we conclude that Thorpe’s argument
fails on the merits.
Because Thorpe’s right to possess firearms
was
his
never
restored,
predicates
under
§
(2012).
Furthermore,
state
922(g)(1).
court
See
Thorpe
convictions
18
cites
U.S.C.
no
are
§
authority
proper
921(a)(20)
for
the
proposition that a felon retains a due process interest in the
right
to
Amendment.
bear
arms
under
either
the
Second
or
Fourteenth
See Johnston v. State, 735 S.E.2d 859, 876 (N.C. Ct.
App. 2012) (“No federal or State case has held that a convicted
felon
enjoys
Fourteenth
a
liberty
Amendment.”).
interest
For
process claim fails.
5
to
these
bear
arms
reasons,
under
the
Thorpe’s
due
Appeal: 16-4577
In
Doc: 22
Filed: 03/01/2017
accordance
with
Pg: 6 of 6
Anders,
we
have
reviewed
the
entire
record in this case and have found no meritorious issues for
appeal.
We
therefore
affirm
the
district
court’s
judgment.
This court requires that counsel inform Thorpe, in writing, of
the right to petition the Supreme Court of the United States for
further review.
If Thorpe requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation.
Counsel’s motion must state that a copy thereof
was served on Thorpe.
We dispense with oral argument because the facts and legal
contentions
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?